Sunday, August 12, 2018

Time for State Courts to Lead on Rights?

      With the Supreme Court on the verge of a solid conservative majority,  the time is ripe to reconsider the role of state courts in recognizing and protecting individual rights. Now comes an unlikely messenger: Jeffrey Sutton, a federal appeals court judge and a regular featured speaker for the conservative Federalist Society.
      In his new book 51 Imperfect Solutions: States and the Making of American Constitutional Law (Oxford University Press), Sutton tells the untold story of the role that state courts and state constitutions have played through the years. He begins by noting that for the public and the legal community alike, all discussions of constitutional law typically begin and end with the Supreme Court of the United States. So too for litigators, he says: groups pressing new claims for constitutional rights file suits in federal courts, hardly ever in state courts.
      Sutton acknowledges that state courts have a generally deserved reputation for "relative underprotection of individual rights." But he notes that the rights now enshrined in the Bill of Rights originated in the state constitutions written between independence in 1776 and the ratification of the national Constitution in 1789. In addition, Sutton notes that at least seven state courts had assumed that power before the Framers met in Philadelphia in 1787.
      The modern history of constitutional law begins with the Warren Court's revolution in criminal procedure. The Court's series of decisions in the 1960s, such as Mapp, Gideon, and Miranda, required state criminal justice systems and courts to respect rather than ignore the rights specified in the Fourth, Fifth, and Sixth Amendments of the Bill of Rights.
      Sutton tells different stories from different periods in U.S. history. The National Court — his term for the one in Washington — has not always been a vanguard for individual rights. To the contrary, the Supreme Court at times has been either blind or slow in protecting individual rights or promoting equal justice. State courts have sometimes been better, sometimes not, but Sutton recites the twentieth century history of four legal issues where state courts helped provide a measure of justice after the Supreme Court's misdirection or default.
      In two of these stories, states got the issue right after the Supreme Court got it egregiously wrong. The first begins with the eugenics movement, the pseudoscientific theory for genetic superiority advanced by such progressives as Theodore Roosevelt and Woodrow Wilson early in the twentieth century. To his everlasting embarrassment, the great Supreme Court justice Oliver Wendell Holmes Jr. put his stamp of approval on the movement in the infamous decision, Buck v. Bell (1927), that upheld a Virginia law for involuntary sterilization of "feeble-minded" individuals.
      State legislatures more than state courts get credit for ending involuntary sterilizations by the 1980s, after more than 60,000 such procedures nationwide, according to Sutton's account. State legislatures repealed the sterilization laws and for good measure began writing the precursors of the federal law prohibiting discrimination against the disabled.
      The Supreme Court was again egregiously wrong in 1940 when it upheld a West Virginia law requiring public school students to salute the American flag while reciting the Pledge of Allegiance. The Court's decision in Minersville School District v. Gobitis (1940) is a black mark on the reputation of the great Supreme Court justice Felix Frankfurter, who flaunted his patriotism in rejecting the religious freedom plea by the Gobitas family, devout believers as Jehovah's Witnesses.
      The Court corrected itself  in the second of the Flag Salute Cases only three years later by upholding a similar religious freedom claim by Jehovah's Witnesses in West Virginia State Board of Education v. Barnette (1943). That story is told in constitutional law classes in law schools, but Sutton adds to the familiar account by noting that state courts had started to rule for Jehovah's Witnesses in such cases in the three-year interim.
      In the third of Sutton's stories, the Supreme Court blinked when urged in Wolf v. Colorado (1949) to enforce the Fourth Amendment by requiring states to exclude illegally obtained evidence. At the time, 16 states had their own exclusionary rules. The Court reversed itself in Mapp v. Ohio (1961); by then, nearly half the states had exclusionary rules.
      In the last of the stories, Sutton notes the Court's decision in San Antonio Independent School District v. Rodriguez (1973) that found no Equal Protection Clause requirement for equal school funding. In the decades since, state courts have moved in: ordering or catalyzing significant reforms to narrow funding disparities between rich school districts and the others.
      With his title, Sutton confounds the purpose listed in the Preamble to the Constitution: "to form a more perfect union." Better, he says, to have 51 imperfect solutions from state courts than one imperfect solution for the whole country from the National Court. The Supreme Court, he suggests, should stay its hand unless constitutional text and history are clear. State courts, he says, should be free to adapt individual rights to each state's particular history, culture, and geography.
      Sutton refuses to take sides on specific issues. So he does not offer to give up the Heller decision on the Second Amendment and leave gun rights up to individual states. On same-sex marriage, however, he views the interplay between state and federal courts as pointing, perhaps, to the right answer — despite his contrary position in the cases that actually reached the Supreme Court under the title Obergefell v. Hodges.
      Sutton emphasizes the role that Massachusetts' highest court played with its decision in Goodridge v. Dep't of Public Health (2003) to recognize marriage equality for same-sex couples under the Bay State's constitution. Without Goodridge, he says, there would have been no Obergefell. For rights advocates, Sutton suggests, look to the states: sage advice surely for those on the political and legal left as the Court prepares, it seems, to take a sharp turn to the right.

Sunday, August 5, 2018

On Kavanaugh, Republicans Neck-Deep in Hypocrisy

    Senate Republicans are neck-deep in political hypocrisy as they move toward confirmation hearings for Supreme Court nominee Brett Kavanaugh without a shred of bipartisanship or principle. With Republicans having lost any capacity for shame, the Republicans' prime movers on judicial confirmations — Majority Leader Mitch McConnell and Judiciary Committee Chairman Charles Grassley — are adopting tactics that flatly contradict their stances on President Obama's last two Supreme Court nominations.
    Starting with Grassley, the Judiciary Committee chairman is pressing for Kavanaugh's confirmation hearing to be held in September well before the George W. Bush Presidential Library can provide even incomplete records of Kavanaugh's five years in the Bush White House. Now consider what Grassley had to say in regard to Elena Kagan's nomination to the Supreme Court on the Senate floor on June 15, 2010, as the committee was waiting for the Clinton Library to provide records about her years as a White House aide.
    Grassley, then in his thirtieth year as U.S. senator from Iowa, began his remarks by telling his colleagues that he had "always been of the opinion that the Senate needs to conduct a comprehensive and careful review of Supreme Court nominees [emphasis added]." For the Senate to fulfill its constitutional responsibility, Grassley elaborated, "we must get all of her documents from the Clinton Library and have enough time to analyze them so we can determine whether she should be a Justice."
    Republicans, then in a 59-41 minority in the Senate, fully explored the complete records on Kagan's work in the White House as domestic policy adviser, focusing on such issues as welfare reform, gun rights, and abortion. Grassley was one of 36 Republicans, along with the then-minority leader McConnell, who sized up Kagan based on that record as too liberal and voted against her confirmation, along with one Democrat.
    Democrats today want to examine all of Kavanaugh's work in the White House, including his three years as Bush's staff secretary that he himself describes as his "most formative" pre-judicial experience. They want to see the records to question Kavanaugh on the witness stand and then to use that evidence to try to substantiate, for any of the 51 Republicans willing to listen, their belief that Kavanaugh is too conservative and too partisan for a lifetime seat on the Supreme Court.
    Grassley started this contretemps by leaving Democrats behind as he asked the Bush library only for documents from Kavanaugh's two years in the White House counsel's office. All 10 Judiciary Committee Democrats submitted a separate letter last week asking for all of Kavanaugh's records, but Grassley dug in his heels. With the first batch of documents received from the National Archives, the Democratic leader Chuck Schumer of New York complained about the lack of transparency. "We don't know what they've held back and why," Schumer remarked.
    Grassley's full-speed-ahead approach is tied to the insistence by McConnell and other Republicans that Kavanaugh's confirmation needs to be completed in time for him to take the bench when the Supreme Court opens its 2018 term on Oct. 1, the traditional first Monday in October. The Republicans' concern about the need for a full nine-justice Court is laughably disingenuous after McConnell left the Court with a fourteen-month vacancy by refusing to consider Obama's nomination of federal appeals court judge Merrick Garland in 2016.
    McConnell now says he is willing to work on Kavanaugh's confirmation with Democrats on a bipartisan basis. The Senate's longest-serving Republican, Utah's Orrin Hatch, added to the comic relief last week by denouncing what he called Democrats' "dumbass" partisanship on Kavanaugh's nomination. "I'm tired of partisanship and frankly we didn't treat their candidates for these positions the way they're treating ours," Hatch said in a stakeout by reporters. The record, of course, is to the contrary: Republicans all but shut down any consideration of Obama's nominees for the federal bench in his final year in office.
    The liberal advocacy group People for the American Way aptly sized up the GOP's strategy in a statement by executive vice president Marge Baker. Republicans "are far more interested in rubber-stamping Donald Trump's nominees than in adequate vetting," Baker said. She challenged four Republican senators by name  Alaska's Lisa Murkowski, Arizona's Jeff Flake, Maine's Susan Collins, and Tennessee's Bob Corker — by asking whether they would "stand for the institutional integrity of the Senate." Stage direction: they do not move.
    Meanwhile, Kavanaugh's outside supporters are competing with the Senate Republicans for first place in disingenuousness. A television ad being run by the conservative Judicial Crisis Network says Kavanaugh "has earned respect from both sides of the aisle." It also includes a snippet from Kavanaugh's White House appearance, where he promised to keep "an open mind on every case." Lest any viewer be misled, however, the TV ad also shows what Kavanaugh's supporters are actually thinking: "a grand slam for conservatives."
    More than Neil Gorsuch's confirmation to succeed the late Antonin Scalia, Kavanaugh's nomination to succeed Anthony M. Kennedy could change the Supreme Court's balance of power for at least a decade or longer. "A solid conservative majority," Miguel Estrada promised to a Federalist Society luncheon last month. With so much at stake, Grassley's words eight years ago are well worth recalling. "We need to be certain," Grassley said then, "that the nominee will not come with an agenda to impose his or her personal political feelings and preferences on the bench."